Conditional planning permission granted for construction of four retail warehouses – Condition restricting retail to bulky goods only – Application to vary condition to allow sale of pet products refused by council – Applicant’s appeal dismissed by inspector – Whether Inspector taking correct approach – Application dismissed
On January 10 1995 conditional planning permission was granted for the construction of four retail warehouses on land to the east of Salisbury city centre, off the A36 Southampton Road. It formed part of an established out of centre retail area including a Tesco Superstore and other retail units. By condition 11 of the consent the range and type of goods to be sold from the non-food retail units were restricted to ‘DIY and/or garden goods; furniture; carpets and floor covering; camping, boating and caravaning goods; motor vehicle and cycle goods; and bulky electrical goods’. The restriction of the retailing to bulky goods was in accordance with the current advice in PPG 6. In May 1995 the applicant applied under section 73 of the Town and Country Planning Act 1990 to vary condition 11 to include the sale of animal food stuffs and requisites in order to accommodate the requirements of a proposed tenant for one of the units. In October 1995 the application was refused by Salisbury District Council, the second respondents, and the applicant appealed.
An inquiry was held in July 1996 and the inspector dismissed the appeal. It was common ground that the structure plan CF2 applied, which provided that permission would normally be granted for shopping developments, and that local plan policy s5 applied which provided, inter alia, that ‘the development of retail warehouses . . . will be permitted . . . subject to . . .’ specified requirements including agreement upon the range and type of goods to be sold in accordance with the policy. Bulky goods uses were listed in requirement (v) of the policy s5 as being acceptable. The inspector concluded that the proposed variation of the condition would not comply with the criteria under the policy s5 and that ‘as indicated in section 54A of the 1990 Act, unless material considerations indicated otherwise, the appeal should therefore fail’. She concluded that there were no material considerations sufficient to overcome ‘the policy objection’ and therefore the appeal should be dismissed. The applicant made an application under section 288 of the Act for the inspector’s decision to be quashed.
Held The application was dismissed.
1. The inspector had not failed to have regard to PPG 6. Although she had not relied upon PPG 6 to support the retention of the condition but had relied on policy s5, there was nothing in PPG 6 which advised against the imposition of conditions pursuant to an adopted local plan policy.
2. The inspector had been entitled to conclude that for permission to be granted in accordance with the development plan it had to comply with both policy requirements, and therefore although she found the proposal complied with the Structure plan policy CF2, she had found that it did not meet the requirements in policy s5. Accordingly, the inspector had been entitled by virtue of section 54A of the 1990 Act to decide whether material considerations were such that the local plan should not prevail.
John Howell QC (instructed by Gouldens) appeared for the applicant; Ian Albutt (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment..
